The Omen of Arpaio: Open Season on Latinos

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Well, he went ahead and did it. Last Friday, President Trump pardoned Joe Arpaio, the former Arizona sheriff who illegally used racial profiling to enforce immigration laws.

Trump has the legal power to pardon pretty much anyone. But pardoning Arpaio sends the message that state and local officials can aggressively enforce federal immigration law, even if it risks racial profiling and violating the due process rights of both citizens and noncitizens.

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Joe Arpaio

Arpaio's Violations:

Arpaio was for decades the elected sheriff of Maricopa County, Arizona, the county that includes Phoenix. He has long been known for his harsh practices like requiring inmates to work on chain gangs and live in outdoor tent cities in the scorching Arizona heat. He prioritized immigration enforcement at the expense of crimes like sexual assault. He also jailed some people who criticized him, including two reporters who successfully sued him for false arrest.

In 2011, a federal court found that Arpaio's sheriff's department unconstitutionally racially profiled Latinos. Basically, he had his deputies stop, detain, and interrogate Latino people — U.S. citizens, legal immigrants, and undocumented immigrants alike — on suspicion of immigration violations, without probable cause.

The court later noted that state and county officials had no authority to enforce federal immigration law without authorization from the federal government. Arpaio had no such authorization, because Homeland Security stripped Maricopa County of such authority, based on U.S. Justice Department findings of rampant abuse.

State and local cooperation can be helpful in enforcing federal law, but when it comes to immigration, federal law usually preempts state law. State over-enforcement of immigration law can interfere with federal policy. So, state officials should enforce federal immigration law only where the federal government asks them to.

More fundamentally, no federal or state official can legally target people for immigration-related stops and questioning just because they look Latino. And as the Supreme Court has stated, even non-citizens have the right to due process and to be free from racial discrimination, as long as they are present in the U.S. Arpaio thus broke the law by violating individuals' Fourth Amendment rights to be free from unreasonable search and seizure.

The court ordered Arpaio and his office to stop using race as a factor in its enforcement decisions. His deputies could detain individuals based on probable cause that they had violated some state law, but not merely because they suspected them of being in the U.S. illegally.

In July, another federal judge convicted Arpaio of criminal contempt for intentionally violating the first court's prior orders. His sentencing hearing (now moot) had been set for this October.

The Pardon's Effects:

It's very unusual for a president to pardon someone before they're sentenced. Doing so suggests that Trump felt Arpaio did nothing wrong. Trump made that clear by publicly praising Arpaio for his "admirable service" and saying he was "convicted for doing his job." (Apparently, a sheriff's job includes harassing Latinos and violating privacy rights.) Phoenix mayor Greg Stanton called the pardon "a slap in the face to the people of Maricopa County."

The pardon could encourage other like-minded state and local officials to racially profile Latinos. More broadly, it may encourage state and local officers to aggressively enforce federal immigration law. Many experts and law enforcement officials criticize such state and local enforcement, saying it erodes trust with immigrant communities, making them too fearful to report local crimes and cooperate with police.

Arpaio's pardon does not mean a complete clean slate for him. It would not erase a separate court ruling from 2016 that found him in civil contempt of court. Civil contempt is a non-criminal finding, which could require remedial measures like court-ordered reforms, reporting requirements, and the like. These do not fall under the reach of the president's pardon.

Nor does a pardon mean that he or his department are allowed to return to their unconstitutional practices. Arpaio himself is now out of office, having lost his most recent election. And the Maricopa County Sheriff Department is still under a court order to refrain from racial profiling and other illegal immigration enforcement efforts.

But the pardon may embolden immigration hawks and infuriate Trump's opponents — which, in the end, might very well be the intention.

Former County Commissioner Steve Mulroy teaches constitutional and civil rights law at the University of Memphis.